Opinion
18643.
SUBMITTED JULY 13, 1954.
DECIDED SEPTEMBER 13, 1954.
Habeas corpus. Before Judge Wood. Fulton Superior Court. May 6, 1954.
Wesley R. Asinof, for plaintiff in error.
Ralph C. Jenkins, J. C. Savage, J. C. Murphy, J. M. B. Bloodworth, Henry L. Bowden, Martin McFarland, contra.
The presumption in favor of the validity of a city ordinance is not overcome in a case involving a constitutional attack thereon where it is merely assumed that the practice of fortune-telling is a legitimate calling which can not be prohibited by the city under its police power.
SUBMITTED JULY 13, 1954 — DECIDED SEPTEMBER 13, 1954.
Dianne Williams, the plaintiff in error, was convicted in the Municipal Court of Atlanta for the violation of a city ordinance which reads as follows: "It shall be unlawful for any person to practice in the city the calling or profession of fortune-teller or astrologer." Thereafter, she filed against the chief of police a petition for a writ of habeas corpus in Fulton Superior Court, alleging that she is being illegally restrained of her liberty by virtue of a conviction and sentence under the ordinance, which is null and void and unconstitutional in that it is in conflict with the 14th amendment to the Federal Constitution and the due-process and freedom-of-speech provisions of the State Constitution, for named reasons; that she earns her living as a professional fortune-teller, which is a lawful means of earning a living; and that she has paid rent on property located in the city to carry on this calling, which has been in a peaceable and orderly manner in no way endangering the health, safety, morals, or general welfare of the City of Atlanta. No written response was filed, thereto, but the petitioner was produced in court and it was admitted that she was being held in the respondent's custody under the conviction as alleged in the petition. After a consideration of the petition and the admission as evidence, the court passed an order remanding the petitioner to the custody of the respondent, and the exception is to that judgment.
However strongly as individuals we may believe fortune-telling is a fake and a fraud upon all who patronize it, we would be slow to say judicially that it is such. Indeed we are neither familiar with the basis upon which the ability to tell fortunes is claimed, nor are we able to read the human mind. Deciding this case, however, does not require us to know whether or not fortune-telling is a fake and a fraud. The action was to secure the release from custody after trial, conviction, and sentence for a violation of a city ordinance which, in substance, provides that it shall be unlawful to practice within the city the calling or profession of fortune-teller or astrologer. Since, as stated above, we do not judicially know enough about fortune-telling to render judgment on its merits, the ordinance appears to be valid. Indeed, the ordinance is presumed to be valid. Moore v. City of Thomasville, 17 Ga. App. 285 ( 86 S.E. 641); McDonald v. Town of Ludowici, 17 Ga. App. 523 ( 87 S.E. 807); Jefferson v. City of Perry, 18 Ga. App. 689 ( 90 S.E. 365); Anthony v. City of Atlanta, 66 Ga. App. 504 ( 18 S.E.2d 81).
The prisoner has utterly failed to show wherein the ordinance is void. Of course, she assumes, without showing any fact to authorize the assumption, that fortune-telling is a legitimate calling, untarnished with fraud or other qualities which the city could lawfully render illegal by ordinance, and from this premise she concludes that she is being denied the protection of the 14th amendment of the Federal Constitution and due process of law and free speech as guaranteed by the State Constitution. She cites the following cases, which hold that a lawful business can not be prohibited by city ordinance: Cosgrove v. City Council of Augusta, 103 Ga. 835 ( 31 S.E. 445, 42 L.R.A. 711, 68 Am. St. R. 149); DeBerry v. City of LaGrange, 62 Ga. App. 74 ( 8 S.E.2d 146); Watson v. Mayor c. of Thompson, 116 Ga. 546 ( 42 S.E. 747, 59 L.R.A. 602, 94 Am. St. R. 137). On the other hand, she ignores the fact that 200 years ago Parliament enacted a law making fortune-telling a misdemeanor (9 Geo. II, Cap. V); that our own legislature (Code § 92-2011, Ga. L. 1929, pp. 58, 60; Code, Ann., § 92-2012, Ga. L. 1935, pp. 35, 36) expressly authorized cities to prohibit fortune-telling. (Ga. L. 1951, p. 157, repeals various State occupational taxes including a tax on fortune-tellers.) In addition, the following court decisions have sustained laws prohibiting fortune-telling: Gladstone v. Galton, 145 F.2d 742; State v. Neitzel, 69 Wn. 567 ( 125 P. 939); Davis v. State, 118 Ohio 25 ( 160 N.E. 473); Mitchell v. City of Birmingham, 222 Ala. 389 ( 133 So. 13). These laws at least support the validity of the ordinance in question, and we have found none holding it invalid.
Therefore, having failed to overcome the presumption of validity of the ordinance, the petitioner failed thereby to sustain the sole ground upon which she sought release, and, accordingly, the judgment remanding her to custody is
Affirmed. All the Justices concur.